- by Graham Holton
- The Guardian
- Issue #2143
United States Capitol Photo: Ania Mendrek – flickr.com (CC BY-NC-ND 2.0)
In his first 100 days of office President Donald Trump has signed 123 executive orders (EOs), fewer than any new president taking office during the past 70 years. In comparison, Franklin D Roosevelt passed a total of 3,721 EOs and Woodrow Wilson 1,803 respectively. The difference is that many of Trump’s EOs are unconstitutional and arguably illegal.
The US Constitution has checks and balances to ensure no branch of government is more powerful than the others. The president cannot use an EO to sidestep those checks and balances. An executive order can order the federal government to take steps as long as it does not violate federal laws. Congress can enact a law to reverse a president’s EO only when Congress has the constitutional authority to do so. A court can hold that an EO is unlawful if it violates the Constitution or a federal statute.
For example, Trump’s order to rescind President Johnson’s order concerning civil rights obligations of federal contractors, does not overrule any statute that governs equal protection in employment, even though it undermines civil rights protections. The EOs that rolled back DEI (Diversity, Equity, and Inclusion) attack birthright citizenship and target transgender people. This is unlawful.
House and Senate Democrats have been largely powerless to block Trump’s agenda legislatively, so they have turned to the courts. Rep. Melanie Stansbury (D-N.M.) said: “The only way to essentially stop them in their tracks is to use the courts.” Republicans in turn have questioned the courts’ right to rein in Trump’s EOs. Vice President JD Vance posted on X: “Judges aren’t allowed to control the executive’s legitimate power.” House Speaker Mike Johnson (R-La.), a former constitutional lawyer, supports Trump’s expansive EOs., saying “The courts should take a step back and allow these processes to play out.”
The most effective action to stop Trump’s EOs has been in the lower courts, which have slapped 15 national injunctions against the EOs. In retaliation, the Trump administration has used these injunctions to petition the US Supreme Court to rein in the lower court. Supreme Court Justices Samuel Alito and Neil Gorsuch are critical of the lower courts’ overuse of nationwide injunctions, saying they have overstepped their power. In the case of blocking the Trump administration’s freeze of US$2 billion in USAID funding, Alito asks: “Does a single district-court judge who likely lacks jurisdiction have the unchecked power to compel the government of the United States to pay out?” He emphatically replies “No.”
When Trump hit back at lawyers and law firms for stonewalling his agenda, a federal judge blocked him, calling his retribution campaign “a shocking abuse of power.” Trump is defying the Supreme Court directive to return Kilmer Abrego Garcia from an El Salvadorian prison. Senate Minority Leader Chuck Schumer (D-NY) has warned this could end in a constitutional crisis if Trump continues to defy court orders.
Schumer could be right. Trump’s second term is the most disruptive of any US presidency since 1945. He and his team show no sign of respecting the famed ‘checks and balances,’ so the US may well have more than one crisis before Trump is finished.
